Federation
of Directly Appointed Officers of Indian Railway Vs. Union of India & Ors [1993] INSC 308 (18 June 1993)

Indian
Railway Service of Engineers (Class-I)- Absorption of temporary Assistant
Engineers (Officers) into the service- Seniority-Weightage-Half the length of
service prior to absorption subject to a maximum of five years-Correctness
of-Dispute between parties in representative capacity- Applicability of Res-Judicata.

HEAD NOTE:

There
were two parallel Services of Engineers in the Indian Railways. One was the
Indian Railways Service of Engineers (Class-(I) who were subjected to competitive
written and personality tests and appointed by the President of India.

The
other Service was the temporary Assistant Engineers (later known as Temporary
Assistant Officers) appointed by the Railway Board, on selection based (on
interview alone.

In
addition to the minimum educational qualifications which was the same for both
the services three years experience as Civil Engineer was required for the
Railway Service of Engineers.

The
temporary Assistant Officers were gradually absorbed into the Indian Railway
Service of Engineers and the Railway Board took a decision that they would be
given weightage in seniority on the basis of half the total length of
continuous service in working posts in Railways prior to their permanent
absorption into Class-I subject to a maximum weightage of five years.

Writ
Petitions were filed in this Court by the Federation of Temporary Officers
Association in a representative capacity seeking relief in their seniority
status.

This
Court dismissed the Writ Petitions holding that the classification of
temporary, Assistant Officers separate from the Indian Railway Service 1019
Engineers Class-I, was neither discriminatory nor violative of Articles 14 and
16 of the Constitution; and that the object of recruitment, methods of
recruitment, appointing authority and training imparted being different, no
question of their entitlement to equal rights arose fill they were absorbed
into the Indian Railway Service of Engineers Class-

1.
This Court also approved ,the measures of the Railway Board in regard to giving
weightage of half the length of service as temporary Assistant Officers subject
to a maximum of five years. Their claim for equal status for equal pay and
equal work was also rejected. (Katyani Dayal & Ors. v. U.0.1. [1980] 3 SCR
139).

In the
present Writ Petitions and Civil Appeals filed in a representative capacity,
the relief claimed were on the same lines as in Katyani Dayal,s case. As
directed by this Court the affected parties were impleaded in their
representative capacity, so that the decision of this. Court would he binding
on every member of both the classes of employees.

On
behalf of the Petitioners/Appellants, it was contended that equal pay for equal
work with equality in all other conditions of service including avenues of
confirmation, absorption, promotion, pension and security have become
inflexible postulates of service jurisprudence.

The
respondents contended that what was being asked was a virtual review of Katyani
Dayal's case which could not be permitted. It was also contended that
principles of constructive res judicata would bar the re agitation of the
issues decided in Katyani Dayal's case if not the strict principles of res judicata
; and that when the matter has been settled in this particular service, its
unsettling by means of a petition under Article 32 of the Constitution was
impermissible.

Dismissing
the matters, this Court

HELD:
1. The distinction between the two services was well marked in Katyani Dayal's
case and the important question of equality was once for all settled. To find
fault with it, at this juncture again on the touch-stone of equality dimension
would be to unsettle a settled position.

That
venture is neither in the interest of justice nor in the interest of service.
When there has been complete absorption of the personnel of one service into
the other, and the seniority of the absorbers is to he reckoned from their date
of absorption as stipulated in their appointment letters with weightage of half
the length of 1020 service subject to a maximum (of give years, it would
otherwise be imprudent now. at this point of time to dig up old issues, The
rule or weightage also appears to be reasonable and this is a pattern which has
been noticed and approved In many a Service. Similarly when the dispute raised
between the Officers in a representative capacity and Engineers riot so
represented, still it was a dispute raised before this Court which has been
decided finally. (1026 B- D) Katyani Dayal Ors. v. Union of India & Ors,[1980] 3 SCR 139 referred to.

2. The
dispute now sought to he raised under Article 32 of the Constitution between
the Officers in a representative capacity and Engineer.%- across also in a
representative capacity is barred by principles of res judicata as also by the
rule of Constructive res judicata. (1026 D-E)

3. It
cannot he said that the State is prohibited from creating separate channels of
service. Equally when absorption had been made possible and its pace quickened
with weight-age, it is difficult to find fault with the scheme at this point of
time to look for a substitution, as that would unsettle a settled position,
established more than a decade ago. (1026 E-F) Direct Recruit Class II
Engineering Officers Association v. State of Maharashtra & Others [1990] 2
SCC 715, followed.

The
Judgment of the Court was delivered by PUNCHHI, J. These are a handful of writ
petitions and special leave petitions which, on grant of leave hereby, and
having become appeals, can conveniently be disposed of by a common judgment.

The
fulcrum of the controversy herein, and the shadow in which it works is a
three-judge Bench decision of this Court in Katyani Dayal & Ors. v. Union of India & Ors. [1980] 3 SCR 139 decided on March 26, 1980. Before adverting to the facts and
circumstances in which this cause has been presented to this Court it would be
fruitful to give a broad outline of Katyani Dayal's case, in the immediately
succeeding, paragraphs.

Connected
with Katyani Dayal's case were writ petitions filed in a represen- 1022 tative
capacity, purporting to represent all temporary Assistant Engineers (on a later
point of time known as temporary Assistant Officers) appointed by the Railway
Board, pursuant to the authority given by the President of India, on the
recommendations of the Union Public Service Commission; selection based on
interview alone. There was a separate classification of such temporary
Assistant.

Officers
when compared with India Railway Service Engineers (Class 1). Direct recruits
to the Indian Railway Service of Engineers (Class 1) were subjected to
competitive written and personality tests and in the nature of things only the
very best could emerge out successfully. On the other hand temporary Assistant
Officers, (hereafter referred as 'Officers' at places) were neither subjected
to written nor to a personality test but, as said before, were selected on the
basis of interview. Besides the minimum educational qualification, which was
the same for both the services three years experience as a Civil Engineer was. additionally
required for the aspirants to the Indian Railway Service of Engineers (Class 1)
(hereafter referred to as the 'Engineers' at places). While the President was
the appointing authority of the Engineers, the Railway Board was the appointing
authority of the Officers. Both the members of these services on selection were
due for different courses of training earmarked separately. There were a host
of other factors which distinguished the quality and character of the personnel
of the two parallel services as elaborately detailed in Katyani Dayal's case
(supra).

Between
the years 1955 and 1964, as many as 553 officers (temporary Assistant
Engineers) were appointed by the Railway Board through the Union Public Service
Commission.

Though
in the letters of appointment the officers (temporary Assistant Engineers) and
others concerned were told that six of them, would be absorbed into the Indian
Railway Service of Engineers (Class 1) every year, this figure in the
subsequent years was increased from time to time when in 1975, the figure as
increased stood at 25 per year. The net result was that after absorption, 107
Officers were residually left unabsorbed in the year 1976 by the time of the
filing of the connected writ petitions in Katyani Dayal's case and they too
were finally absorbed in 1979 by What was described as a "blanket
order". Before hand on September 17, 1965, the Railway Board had taken a decision to the effect that the Officers
so absorbed into the Indian Service of Engineers would be given weightage in
seniority "on the basis of half the total years of continuous service in
working posts in Railways prior to their permanent absorption into Class. 1,
subject to a maximum weightage of five years". The then writ petitioners,
describing themselves as members of the Federation of Temporary Officers
Association, Indian Railways joining with them, their President, Vice-President
and Secretary of the aforesaid Federation as writ petitioners approached this
Court 1023 in a representative capacity to seek relief in their seniority
status.

The
principal claim of the writ petitioners was that Officers were appointed to
temporary posts on the cadre of Engineers and that their seniority had to be
reckoned on the basis of their length of continuous service, though they
conceded that in any given year, the candidates appointed as Engineers on the
basis of the results of the competitive examinations were placed above those
appointed on the basis of selection by the Union Public Service Commission. The
challenge was to the authority of the Railway Board to create such an
unclassified parallel service, something outside the preview of the Indian
Railway Establishment Board. Notwithstanding the procedure of selection so
adopted the writ petitioners contended that they were recruited in Class I
service and supported their claim on diverse grounds so as to obtain the result
that all Assistant Engineers formed one class under the Indian Railway
Establishment Board. Challenge was made to the classification of personnel into
those that were recruited on the basis of the competitive examinations and
those that were recruited by selection, but both by Union Public Service
Commission, terming it as arbitrary and not permissible under the equality clause
in the Constitution.

Grievance
was voiced that the right of absorption of a handful of temporary Engineers
(Officers) every year into the Service of Engineers was arbitrary and inequituous
resulting in grave injustice rendering decades of service of the Officers to a
mere waste.

Unfortunately
the then writ petitioners did not sue the respondents across in a
representative capacity. In the fitness of things it would have been
appropriate for the then writ petitioners to either involve all parties who could
possibly have an interest or a likely affectation in the litigation, or to sue
them in a representative capacity if not individually. However some people did
get impleaded as parties in that case to project their. point of view and due
to the nature of dispute those predominantly were members of the Indian
Railways Service of Engineers Class 1.

This
Court while dismissing the writ petitions held that the classification of
temporary Assistant Officers separately from the Indian Railway Service
Engineers of Class I was neither discriminatory nor violative of Articles 14
and 16 of the Constitution, for the reason that it had nexus to the object
sought to be achieved, which mainly was efficiency of service, and that both
the services had started separately and never became one. This Court further
viewed that the object of recruitment being different, the methods of
recruitment dissimilar, the appointing authority being not the same, the
training imparted to the two unlike, the tenure of temporary Assistant Officers
being precarious, and their maximum aspiration being only to be absorbed into
the Indian Railway Service of Engineers Class 1024 were distinctive features
and, therefore, no question of their entitlement to equal rights arose until
and unless the temporary Assistant Officers got absorbed into the Indian
Railway Service of Engineers Class-1. This court also ruled that the. seniority
of the.absorbed temporary Assistant Officers would ordinarily reckon from the
date of their absorption into the Indian Railway Service of Engineers Class I
as stipulated in their letters of appointments With regard to the time factor,
this Court also took into account the long wait involved in the process but all
the same approved of the measures of the Railway Board in lessening the Iona
wait by giving them weightage of half of the length of service as temporary
Assistant Officers subject to the maximum of five years. And lastly this court
rejected the claim of the temporary Assistant Officers asking for "equal
status for equal pay and equal work" leaving a ray of hope that such goal
might be achieved in the not too distant future.

The
instant batch of matters is virtually on the same lines as of Katyani Dayal's
case claiming the same relief and this time by the Temporary Assistant Officers
through a body styled as the Federation of Directly Appointed Officers
(Suppressed) of Indian Railways and a few others, in a representative capacity
across which stand arrayed the Union of India and the Railway Board as
respondents. When this matter came up for hearing on 15 March, 1990 before a
three- judge Bench in which one of us (Punchhi, J.) was a member, it was It
that the affected parties should be impleaded in their representative capacity
so as to make the decision of this Court binding on every member of both the
classes of employees. The requisite direction was thus made and carried out.
Pursuant thereto some private respondents on record represent the entire body
of similarly placed Engineers, Thus both sides have sued and are being sued in
their representative capacity.

Mr.
R.K. Garg, learned counsel for the petitioners has spear headed the claim of
the temporary Assistant Officers on the basis of the so called developing
concept of Article 14 in the years gone by, especially in the field of the
right to equality in matters relating to employment on appointment in service.
He asserts that the development of law has gone a long way so as to shed the
views expressed in Katyani Dayal's case justifying demolition of the
demarcation between the two services made as it was in Katyani Dayal's case
examining the question afresh in the light of Raghunandan Prasad Singh v.
Secretary, Home (Police) Department, Government of Bihar & Ors [1988] Supp.
SCC 519, Dr. O.Z Hussain v. Union of India [1990] Supp. SCC 688 at 691, &
Direct Recruit Class II Engineering of officers Association v. State of Maharashtra
& Others [1990] 2 SCC 715 and- 1025 other cases. It was contended that Katyani
Dayal's case upholding the creation of temporary posts outside the service was
on the basis which has since been eroded and "equal pay for equal
work" with equality in all other conditions of service including avenues
of confirmation, absorption, promotion, pension and security have become
inflexible postulates of service jurisprudence. On the other hand, learned
counsel for the respondents has opposed such method contending that what is
being asked is a virtual review of Katyani Dayal's case which is not
permissible by means of successive writ petitions. Addedly it is urged that
principles of constructive res judicata would bar the re-agitation of the
issues decided in Katyani Dayal's case, if not the strict principles of res judicata.
Lastly it was urged that when the matter has been settled in this particular
service, its unsettling by means of a petition under Article 32 of the
Constitution is impermissible.

We
were taken through Katyani Dayal's case extensively.

What
we find is that the distinction and the classification of the temporary
Assistant Officers and members of the Indian Railway Service of Engineers Class
I fell clearly to be identified and marked. The only method of fusion was by
means of a phased absorption as noticed in paragraph 9 of the Report detailed
above. The scheme having met with approval of this Court cannot by mere passage
of time be taken to have become vulnerable by subsequent exponence and
dimension of Article 14 of the Constitution. This Court in Katyani Dayal's case
specifically said that relief of equality was being denied to the then
petitioners because of the history, origin, and structure of the Services. No
opinion was expressed however as to the validity of the given weightage of half
the length of service to Temporary Assistant Officers. subject to a maximum of
five years, because of its being questioned elsewhere.

We are
unable to make any headway or act in judicial indiscipline towards widening the
scope of these matters in the face of the Constitution Bench decision of Direct
Recruit's case (supra). Amongst the conclusions summed up by the Constitution
Bench conclusion (J) and (K) seal the fate of these matters. These are:

"(J)
The decision dealing with important questions concerning a particular service
given after careful consideration should be respected rather than scrutinised
for finding out any possible error. It is not in the interest of service to
unsettle a settled position.

(K)That
a dispute raised by an application under Article 32 of the 1026 Constitution
must be held to be barred by principles of res judicata including the rule of
constructive res judicata if the same has been earlier decided by a competent
court by a judgment which became final." The distinction between, the two
services was well marked in Katyani Dayal's case (supra) and the important
question of equality was once for all settled. To find fault with it, at this
juncture again on the touch-stone of equality dimension would be to unsettle a
settled position. That venture is neither-in the interest of justice nor in the
interest of service. When there has been complete absorption of the personnel
of one service into the other, and the seniority of the absorbers is to be
reckoned from their date of absorption as stipulated in their appointment
matters and as held by this Court with weightage of half the length of service
subject to a maximum of five years, it would otherwise be imprudent now, at
this point of time to dig up old issues. The rule of weightage also appears to
us to be reasonable and this is a pattern which has been noticed and approved
in many a Service. Similarly when the dispute raised between the Officers in a
representative capacity and Engineers not so represented, in Katyani Dayal's
case (supra), still it was a dispute raised before this Court which has been
decided finally. A dispute now sought to be raised under Article 32 of the
Constitution between the Officers in a representative capacity and Engineers
across also in a representative capacity must be held to be barred by
principles of res judicata as also in the rule of constructive res judicata.
The cases aforementioned relied upon by learned counsel for the
petitioners/appellants do not remove this hurdle, however, broadly may Article
14 and 16 be viewed and expanded. It is thus unnecessary to elaborate those
cases and discover their ratio. The are argument of learned counsel for the
appellant that the State is prohibited to create separate channels of service
and create discrimination by making one as an isolated one, and not providing
for promotional avenues reasonably, falls to the ground in view of the bar of
re-agitation erected by Direct Recruit's case (supra).

Equally
when absorption had been made possible and its pace quickened with weightage,
it is difficult to find fault with the scheme at this point of time to look for
a substitution at our end, as that would unsettle a settled position,
established more than a decade ago. We also do not see any compelling reasons
to deviate from the principles enunciated in the judgment. At this point of
time the bars erected by Direct Recruit's case (supra) appear to us to have
further thickened goading us to refrain from the exercise of any undoing. We
thus leave the matter as it is.

It
needs mentioning that the appeals being decided instantly are against the
judgments and orders of the High Court rejecting writ petitions of the
petitioners 1027 before it on the basis of Katyani Dayal's case (supra). No
details of these cases are necessary to dispose of these appeals for the
reasons stated above.

As a
result these petitions and appeals tail, but without any order as to costs. In
view of the dismissal of the main matters, no orders are necessary on all the C.M.Ps.